In this unprecedented time, much attention has been paid to Congressional response to the clinical and economic needs resulting from the COVID-19 pandemic. At the same time, Congress, the Centers for Medicare and Medicaid Services (CMS) and other federal agencies have actively put forth legislation and guidance aimed at providing greater flexibility to states and providers as they struggle to meet health and service delivery demands during this global pandemic. Recent policy developments also provide direction to public insurance programs and private insurers regarding coverage of COVID-19-related testing and services, as well as other health care needs. Below, we summarize each of these federal efforts and highlight examples of state-level action to address local needs.
We have divided this month’s edition into four topics that address a range of federal and state activity this past month. Click the links below to access them:
- Medicaid Waiver Flexibility
- Guidance for Public Programs
- Action Relative to Private Insurance
- State-level responses to COVID-19
Each piece below aims to provide states with information about recent policy changes that have gotten less national coverage over the last weeks. HPN does not outline the clinical guidance specific to safely treating COVID-19. That information is available at https://www.hhs.gov/about/news/coronavirus/index.html.
This is a quickly evolving situation, and these articles outline the status of regulatory information as of the time of production (March 27, 2020). We encourage state regulators and other readers to stay up-to-date on guidance from the federal level—in particular, by regularly checking CMS’s updates.
CMS Provides Flexibility to Public Health Care Programs During the COVID-19 Pandemic via Medicaid Waivers
Section 1135 Waivers
By virtue of the declaration of a public health emergency by the U.S. Department of Health and Human Services (HHS) on January 31st and the President’s declaration of a national state of emergency on March 13th, states now have new Medicaid waiver authority available to them—which many quickly sought to tap. Section 1135 Waivers allow certain federal provisions relative to Medicare, Medicaid and the Children’s Health Insurance Program (CHIP) to be temporarily waived or modified to ensure the availability of sufficient health care items and services to meet beneficiaries’ needs. These can include provisions relative to provider participation, certain coverage requirements, Emergency Medical Treatment and Labor Act (EMTALA) requirements, provider self-referral restrictions, performance timelines, and provider payment. These waivers are temporary and will end at the end of the emergency period.
As of March 27th, 34 states have been granted Section 1135 Waivers, which are provided on an expedited timeline given the emergency circumstances. These waivers are specific to the needs in the states; while CMS noted that it provided blanket waivers specific to Medicare (which are outlined in our article on public programs), it has approved a number of waivers specific to Medicaid and CHIP. The waivers are specific to an individual state’s needs.
- Most states requested and were granted flexibility to expand the providers they can reimburse, and to streamline enrollment of new providers on a temporary basis.
- While noting that states already have authority to rely on the screening performed by Medicare and other state Medicaid agencies, as well as to reimburse out-of-state providers in certain circumstances, CMS is providing additional flexibility for states to perform expedited enrollment of out-of-state facilities and to streamline screening of providers not enrolled in Medicare or other Medicaid programs (under specific circumstances).
- State are also being allowed to temporarily cease the re-validation of enrolled providers.
- Most states requested and were granted flexibility to temporarily waive or modify prior authorization requirements for services. Many are also being permitted to automatically extend prior authorizations granted since March 1st without requiring new or renewed authorizations.
- Most states requested and were granted flexibility to allow care to be delivered in alternative settings as needed. These states are allowed to temporarily reimburse for certain care provided in unlicensed facilities to which licensed facilities have evacuated, as long as the evacuating facility continues to provide the services.
- Most states requested and are being permitted to temporarily waive certain nursing home Pre-Admission Screening and Resident Review (PASRR) requirements.
- Most states requested and were granted flexibility relative to state Fair Hearing processes, including:
- Extending deadlines for beneficiaries to request Fair Hearings,
- Allowing managed care enrollees to immediately seek Fair Hearings, and
- Allowing states to delay the scheduling of Fair Hearings and the issuing of decisions.
- Some states were also granted flexibility to delay adverse actions after completing determinations.
- Some states requested and were granted flexibility relative to State Plan Amendments (SPA) being sought at this time, including those relative to:
- Effective dates for SPAs seeking to increase access to COVID-19-related items and services (see Missouri’s waiver);
- Compressing required tribal consultation timeframes for COVID-19-related SPAs (see North Dakota’s waiver and Oregon’s waiver); and
- Waiving required public input processes for COVID-19-related SPAs (see Missouri’s waiver and Oregon’s waiver).
Each of the waivers is effective as of March 1st for the duration of the states of emergency.
Section 1115 Waivers
As outlined in a recent CMS FAQ, states have the ability during this time to amend existing Section 1115 Waivers for broader flexibility needed to respond to the pandemic. Similar to the flexibility provided for public input requirements relative to COVID-19-related SPAs, CMS is granting exemptions and alternatives for Section 1115 public notice requirements.
Section 1915(c) Home and Community Based Service Waivers
As with the opportunity to amend existing Section 1115 Waivers, states can submit amendments to Home and Community Based Services (HCBS) Section 1915(c) Waivers. As outlined in CMS’s recent FAQ, states may complete Appendix K to alert CMS of changes expected to state waiver operations as a result of an emergency, which may be approved retroactively. Such changes could include: Establishing a hotline, increasing the number of individuals served under a waiver, creating an emergency person-centered service plan, expanding provider qualifications, increasing the pool of providers who can render services, instituting or expanding opportunities for self-direction, and/or permitting payment to HCBS providers when an individual is in a short-term hospital or institutional stay.
Additionally, Appendix K allows states to:
- Temporarily increase individual’s eligibility cost limits
- Modify scope, service or coverage requirements
- Exceed service limitations
- Add services to a HCBS waiver
Appendix K can be found here.
 As of March 25th, Section 1135 Waivers had been granted to: Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Virginia, Washington state and Wyoming.
Congress and CMS Issue Guidance and Requirements Relative to Public Health Care Programs and COVID-19
CMS has regularly issued guidance relative to Medicare, as well as state Medicaid and CHIP programs since the start of the COVID-19 pandemic. This guidance, paired with targeted legislation passed at the federal level, puts forth and outlines flexibilities and requirements aimed at addressing the broad impact of the pandemic.
While much of the guidance relates specifically to clinical care, in this section, we highlight key coverage and general care-related requirements and flexibilities. Ensure you stay up-to-date on all guidance relative to public programs by regularly checking compilation on the CMS website.
Coverage of COVID-19 Testing and Services
CMS guidance initially limited states’ ability to waive cost sharing for COVID-19 testing and treatment to those states that also suspended co-payments for all services, unless they sought a Section 1115 waiver. However, as part of the broader Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18th, Congress required Medicaid and CHIP programs, Medicare Part B, and Medicare Advantage plans to cover COVID-19 testing without cost sharing.
Under this act, states also have the option to extend Medicaid eligibility to uninsured populations for the purpose of COVID testing with a 100 percent federal match. Additionally, funding was provided to reimburse providers for the costs of COVID-19 testing and services for the uninsured. Similarly, FFCRA requires coverage for COVID testing within TRICARE, Veteran’s Affairs, Indian Health services and the Defense Health Program.
However, the original limitations on states’ ability to waive cost sharing specific to COVID-19 treatment still apply. Under Medicaid guidance, states may only waive this if they also suspend co-payments for all services, unless they seek a Section 1115 waiver.
FFCRA, the Coronavirus Preparedness and Response Supplemental Appropriations Act (CPRSAA) and CMS guidance also address additional telehealth requirements for Medicaid programs. These provisions aim to ensure that beneficiaries can access services while in quarantine or practicing social distancing.
The CPRSAA was the first piece of legislation to waive restrictions on the provision of services via telehealth by Medicare providers. That flexibility was clarified via the FFCRA and has since been explained in more detail in CMS guidance. Effective March 6th, CMS will temporarily pay Medicare providers for providing care via telehealth, including that originating in the beneficiary’s home. This is an expansion to the types of telehealth services the program can reimburse; previously, covered telehealth visits were limited to brief check-ins and routine services delivered to rural areas. It also allows care to be provided while the beneficiary is at home (no longer requiring the beneficiary to be at another health care facility).
Under this new guidance, telehealth services will be covered for a range of health care providers, including doctors, nurse practitioners, clinical psychologists and licensed clinical social workers—as well as for a range of services, including office visits, mental health counseling and preventive health screenings. Services need not be COVID-19-related. Any communication tool allowing real-time, interactive audio and video capabilities may be used, and reimbursement will be provided at the same amount as is paid for in-person services. Cost sharing will apply as normal but can be waived by the provider.
The HHS Office of Civil Rights (OCR) also announced that it will exercise enforcement discretion and waive HIPAA violations related to telehealth for health care providers using “everyday communications technologies” in good faith. More information about these new opportunities are available in the CMS Fact Sheet and FAQ.
Similarly, CMS provided guidance to states seeking to reimburse providers using telehealth for service delivery to Medicaid beneficiaries. While State Plan Amendments may be required under certain circumstances, they are not required if payments are made in the same manner as when the service is delivered face-to-face. CMS also notes that payment may include costs associated with the time and resources spent facilitating care, as well as other ancillary costs.
Other Medicaid Flexibility
CMS is maintaining a running FAQ outlining the broad range of Medicaid flexibilities available—for example:
- States have the flexibility to increase Hospital Presumptive Eligibility (HPE) and include additional Medicaid eligibility categories to their HPE (e.g., eligibility groups based on age, disability, or a Section 1115 Waiver population).
- States have flexibility from the timeliness standard for processing Medicaid and CHIP applications and renewals.
- States have flexibility regarding prescription drug supplies, prior authorization requirements. and copays.
- States have flexibility regarding data submissions deadlines.
- States have flexibility related to Section 1115 Waiver requests and public comment requirements.
Additionally, CMS has made a disaster preparedness toolkit available to states.
Other Medicare Waivers
Similar to the COVID-19-related Section 1135 waivers available to states, CMS also issued blanket waivers of similar Medicare provisions, including:
- Temporarily easing provider enrollment standards;
- Temporarily waiving the requirement for a 3-day hospitalization for coverage of a skilled nursing facility (SNF) stay, and allowing SNF coverage to be renewed without requiring the start of a new benefit period;
- Waiving the bed number and length-of-stay limits for Critical Access Hospitals;
- Waiving certain requirements related to housing acute care patients;
- Allowing for the replacement of durable medical equipment, prosthetics, orthotics, and supplies without a face-to-face visit requirement, physician order, and documentation;
- Providing additional flexibility related to Medicare appeals.
CMS also announced additional beneficiary flexibility. In addition to covering and waiving cost sharing for COVID-19 testing and covering services provided by a broader range of providers (as outlined above), Medicare Advantage plans must waive required referrals related to COVID-19 treatments—and may also waive or reduce cost sharing and prior authorization for COVID-19-related services.
Medicare Part D plans must allow access to out-of-network pharmacies and cover any future COVID-19 vaccine, and may also:
- Relax supply and refill restrictions
- Provide flexibilities related to mail delivery of drugs
- Waive prior authorization requirements
For more information, see the CMS fact sheet on this topic.
Federal Support for State Medicaid Programs
The FFCRA also provides a temporary 6.2 percentage point increase to states’ Federal Medical Assistance Percentage (FMAP) during the pandemic. This additional support comes with a maintenance of effort requirement. This funding increase and related requirements are described in further detail in a CMS FAQ.
 Further clarification is included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, also known as the COVID-19 Stimulus bill), which had passed the Senate and House of Representatives as of the time of publication. That bill also includes funding for states and providers relative to health care.
Congress and CMS Action Relative to Employers and Private Insurance Coverage and COVID-19
In addition to seeking to provide greater flexibility relative to public health care programs, CMS and Congress have had their eye on ensuring Americans with private insurance have access to the services they need during the COVID-19 pandemic.
As of March 25th, CCIIO had published several pieces of guidance detailing flexibilities and expectations for private insurance during the pandemic, covering topics such as co-payments for COVID-19 testing and treatment, service delivery, and enrollment. In addition, Congress has passed several bills aimed at addressing the full range of impacts of the COVID-19 pandemic. Within our coverage below, we focus on the healthcare-related provisions in these pieces of legislation.
The Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18th, requires private health insurers to provide coverage for COVID-19 testing within group and individual health insurance plans (including grandfathered plans) without cost sharing or prior authorization requirements. A subsequent bill—the Coronavirus Aid, Relief, and Economic Security Act (CARES Act, also known as the COVID-19 Stimulus bill)—which has passed the Senate and the House of Representatives at the time of publication, would expand the scope of that requirement.
Despite this action, FFCRA falls short of mandating coverage for the treatment of COVID-19. As a result, questions remain about the extent of coverage for emergency services, as well as for typically high-cost services rendered to a consumer in a hospital setting.
CMS released a general fact sheet regarding existing coverage rules that may apply to COVID-related care, as well as an FAQ outlining insurer flexibility to offer early prescription drug renewal and extended supplies.
On March 24th, CMS released an FAQ encouraging private insurers to cover and promote the use of telehealth. CMS noted that it “will not take enforcement action against insurers in the individual and group markets that make a mid-year change to provide greater coverage for, or eliminate cost-sharing requirements for, telehealth services (for COVID-19 or otherwise). Plans cannot, however, make mid-year changes that reduce or eliminate other benefits to offset the cost of providing more generous telehealth benefits.” The pending CARES Act also includes a safe harbor for High-Deductible Health Plans that cover telehealth services prior to the deductible.
CMS is said to be considering action to create a COVID-related special enrollment period (SEP). While that action remains undetermined, CMS has released guidance on payment and grace period flexibility. CMS will exercise enforcement discretion should carriers choose to waive premium payment requirements, including for individuals receiving Advance Premium Tax Credits (APTC), and encourages state-based Exchanges to do the same.
Catastrophic Plans and HDHPs
CCIIO has announced that it will not take action against health insurers that amend catastrophic plans to provide coverage of COVID-related test and treatment services without imposing cost sharing. It is encouraging states to follow its lead. Similarly, the Internal Revenue Service issued guidance allowing High-Deductible Health Plans (HDHPs) to provide coverage for the diagnosis and treatment of COVID without applying cost sharing.
Paid Family Leave in response to COVID-19
FFCRA also seeks to support employees and employers, especially those who are ill or assuming caretaking responsibilities—whether for ill family members or children affected by the forced closures of schools and daycares. To accomplish this, FFCRA provides two weeks of paid leave for full-time workers. Part-time workers would get a period of leave equal to the number of hours they work on average over a two-week period.
This leave only applies to workers at companies with less than 500 employees. Leave payments are capped at $511 a day for sick individuals, or $200 a day for those caring for children or sick family members. Since FFCRA’s passage, small businesses have expressed concerns about the costs of providing the upfront tax funds to ensure employees have Emergency Paid Medical Leave—despite assurance that they will receive a tax credit.
Other Health-Related Provisions in Recent Legislation
- Waivers and funding for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), the Supplemental Nutrition Assistance Program (SNAP), and to support local food banks.
- Allowing waivers that enable schools to continue providing meals to students during shutdowns, as well as funding for states to provide Electronic Benefit Transfer (EBT) food assistance for families whose children typically receive free or reduced-cost meals at school.
- Funding for additional home-delivered and pre-packaged meals through Senior Nutrition programs and nutrition services for Native Americans.
State-Level Responses to COVID-19
States have taken action to increase residents’ access to health insurance, as well as clarify for consumers the costs associated with COVID-19 testing and treatment. Many states are urging consumers to utilize telehealth during this period of social distancing and quarantine and avoid hospitals and medical facilities unless absolutely necessary. This large, rapid shift in the way health care is delivered and may eventually serve as an example of telehealth’s benefits. To assist regulators and policymakers seeking to provide stability, expand coverage options, and ensure healthcare access for consumers, we compiled a round-up of some recent state action related to COVID-19 in this section.
Special Enrollment Periods & Flexibility for Consumers
While the federal government considers adding a special enrollment period (SEP) related to the COVID-19 pandemic, some states have independently taken this action. On March 11th, the Massachusetts Health Connector announced a 45-day extension of its usual open enrollment period in response to the COVID-19 virus—allowing consumers without coverage to enroll until April 25th. At least eight other states have implemented similar changes to their enrollment periods.
In addition to expanding its open enrollment period, Massachusetts sought assistance from health insurance carriers to keep people insured during this public health emergency. On March 23rd, the Massachusetts Division of Insurance issued a bulletin, Flexibility in the Issuance and Administration of Insurance during COVID-19 Public Health Crisis, directing carriers to increase flexibility in a number of key areas to combat COVID-19 and ensure consumers can utilize health insurance benefits. These include:
- Streamlining or delaying the use of administrative paperwork that may delay the maintenance or issuance of insurance;
- Relaxing premium due dates for small employers and individuals; and
- Expanding the grace period for premium non-payment, as well as other provisions related to streamlining COBRA enrollment for recently laid off or unemployed individuals seeking coverage.
Expanding the Use of Telehealth
As of late last week, eighteen states and the District of Columbia had issued guidance expanding telehealth capabilities. Given the current “stay at home” restrictions in place for many enrollees, this guidance waives some in-person requirements for Medicaid enrollees (e.g., states allowing a phone call to qualify as establishing a doctor-patient relationship), as well as the in-office or originating site requirements for telehealth. States can work to ensure continuity of care for consumers during this time of crisis by utilizing telehealth and other technologies, thereby reducing the number of patients using in-person care while allowing consumers access to their providers without risk of COVID-19 exposure.
On March 19th, Governor DeWine of Ohio issued an executive order allowing for the expanded use of telehealth for Medicaid enrollees to access services remotely. To relieve the current pressure on hospitals and health facilities, the order enables patients to utilize telehealth for routine care—particularly behavioral health services, which it specifically targets.
On March 10th, Governor Baker of Massachusetts mandated that all commercial health insurance carriers, self-insured plans, and state health plans operating in the state Massachusetts “cover all clinically appropriate telehealth services, and at the same rate as in-person care,” along with a requirement that medically necessary, COVID-19-related telehealth treatments be covered at no cost sharing.
On March 18th, Governor Sununu of New Hampshire issued an emergency order expanding the use of telehealth. The order requires that all single risk pool health benefit plans and New Hampshire Medicaid coverage (including Medicaid MCO plans) allow in-network providers to deliver clinically-appropriate, medically-necessary covered services to members via telehealth. Additionally, it mandates that reimbursement levels of services rendered via telehealth—including payment to in-network providers for services delivered via telehealth—must not be lower than the established rates of payment for traditionally-delivered services. The New Hampshire Insurance Department followed up the emergency order with a fact sheet to assist consumers in understanding the new regulations (outlining permitted categories of provider visits; providing examples of originating sites, including the patient’s home; detailing accepted and prohibited communication platforms for visits).